[This is one of several stories and blog posts that will cover the hog nuisance trial in federal court in Raleigh. Check the Progressive Pulse blog for daily updates and analysis. Testimony continues today]
There were no scratch ’n’ sniff cards. No fetid fragrance strips like those frequently found in fashion magazines. No pictures of the stench, since it’s impossible to photograph a smell.
Yet in federal court this week, plaintiffs’ attorneys began their task of convincing a jury that the rancid odor of feces and urine emanating from an industrialized swine farm is not merely annoying. Rather, for the 10 plaintiffs who live within a mile of the farm in Bladen County, these intrusions meet the legal definition of a nuisance: an “excessive or unreasonable” impediment to the enjoyment of their private property.
And for the personal cost of enduring these nuisances, which include swarms of flies and a flotilla of trucks traveling down the gravel road at all hours of the night, the plaintiffs say they deserve to be compensated.
The first of several nuisance lawsuits against Smithfield Foods began Tuesday in U.S. District Court in Raleigh. The case focuses on Kinlaw Farms, which raises the nearly 15,000 hogs owned by Smithfield, and the alleged harm the operation is inflicting on the plaintiffs, 10 Black residents, many of them related and some of whom have lived on their land for more than 50 years. (Kinlaw isn’t being sued, only Smithfield.)
But the subtext of the trial, which is expected to last four to five weeks, is the allegation that Smithfield, the world’s largest pork producer, puts profits over the concerns and health of its neighbors. In his opening statement, plaintiffs’ attorney Michael Kaeske depicted a corporation that throws around its political weight to help craft favorable environmental rules — regulations that allow Smithfield to keep using its outdated and polluting open-lagoon waste systems.
(To make his point, Kaeske presented an internal Smithfield email that read, “At first, Angie [Maier of the NC Pork Council] and I talked about getting through again to [DEQ Secretary Donald] van der Vaart. Then we’re like, ‘Forget that. It’s time to tell the governor [Pat McCrory] to rein his secretary in.”)
[easy-tweet tweet=”Smithfield has done nothing to make their lives better”]
Better alternatives exist for managing waste, Kaeske argued, but Smithfield is too cheap to invest in them. “Smithfield has done nothing to make their lives better,” Kaeske told the jury.
As for Smithfield, its attorneys have not yet begun to present their evidence. But in his opening statement, Mark Anderson of the powerful firm McGuireWoods — it also represents the Atlantic Coast Pipeline — painted a much different picture of the pork producer: benevolent, innovative, compliant with all state laws and permits — and a vital economic force for under-served areas of eastern North Carolina. No one has complained to state regulators, to Smithfield or to the Kinlaw family, Anderson argued. And the farm has no record of violations from the state.
In his opening statement, Anderson did acknowledge that hog farms smell. “Of course there are odors,” he said. But other people live near the farm — some have built new homes there — without incident.
Anderson tried to discredit the plaintiffs’ attorneys and witnesses, using code words like “community organizers” and “out of state people with agendas,” in an apparent attempt to appeal to any jurors’ sense of tribalism. “They are here because of other people’s agendas,” Anderson told the jury, referring to the plaintiffs. Later, he added: “There was harmony before the outside people came in.”
Ranging in age from 85 to their teens, the plaintiffs sat in the front row of the courtroom and viewed pictures of what was stinking up their neighborhood. Photos taken inside a hog barn at Kinlaw Farms show manure-smeared hogs crowded into feeding pens in a dark barn surrounded by manure-smeared walls and concrete floors soaked with pools of urine and feces. The hogs at Kinlaw Farms spend their entire lives in these conditions. And during that short time, just a few months, they produce more than 153,000 pounds of manure each day. It has to go somewhere.
[easy-tweet tweet=”There was harmony before the outside people came in”]
These images, taken with Smithfield’s permission (although the company placed other restrictions on the scientist and photographer), lie in stark contrast to the clean, well-lit barn on the company website. The website also claims that it’s a “common misconception” that pigs wallow in their own manure, and that “slatted floors keep the barn clean.” But the pigs sleep in their own waste. They rub against each other, and as the manure dries on them, becomes dust. Manure also gets in the feed and its dust, which can affect the amount of odor released.
Shane Rogers, an environmental engineer and former EPA scientist, visited the farm last year as part of the lawsuit. He testified on behalf of the plaintiffs that wastewater from the lagoons — essentially manure-ridden water — is used to flush out the barns at Kinlaw.
Even though parts of the barns have slatted floors, manure and urine build up on the concrete. As these materials decompose, they create harmful gases: ammonia, hydrogen sulfide, volatile organic compounds, among them. These gases have to be released from the barns to keep the buildup from killing the hogs. In turn, the gases and the particles contained within them, including bacteria, viruses and other pathogens, then travel beyond the farm’s boundary.
Rogers, who now teaches at Clarkson University in upstate New York, tested the houses near the Kinlaw farm, he testified, and DNA analysis showed “for sure” the particles are “moving from the farm to the neighborhood.”
The mixture of gases, he said, is “extremely powerful.”
And people’s sense of smell is subjective, Rogers testified. Merely measuring the level of ammonia in the air, for example, doesn’t necessarily indicate how badly it smells.
Anderson, representing Smithfield, had attempted to liken Kinlaw’s waste management system — flushing the barns with wastewater and emptying the manure and urine into open lagoons to be sprayed hundreds of feet in the air onto fields — to that at a research farm operated by NC State University off Lake Wheeler Road in Raleigh. Just three miles from the courthouse, Anderson argued, and yet people in downtown smelled nothing.
However, Rogers had visited that research farm as well, and conducted studies there. The only similarity is that both facilities are farms. The NC State faciliy has 1,000 hogs; Kinlaw has nearly 15,000. The NCSU farm uses clean water to flush the barns, sharply reducing the odors. The university farm, unlike Kinlaw, also removes solid particles that go into the lagoon, also reducing the odor, and has a different treatment system.
“It’s not a fair comparison,” Rogers said.
While working for the EPA, in 2005, Rogers also studied how pathogens moved from spray fields into waterways. But the three-year project, conducted in North Carolina on a Smithfield-owned farm stalled. After $1.5 million had been spent on the study, the farmer backed out and the research team, not wanting to cause problems for him, withdrew, Rogers testified.
Why? asked Kaeske.
“He said he was getting pressure from Smithfield not to continue the study,” Roger replied.
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